A discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.

Friday, March 10, 2006

You mean the Constitution says you get a speedy trial?

Sandra Carr and Matt Edge, won in State v. Mortiboy, No. 92,608 (Kan. App. March 3, 2006)(unpublished), overturning a couple of possession convictions from Gray County. The main issue was a Sixth Amendment constitutional speedy trial violation. I think I can count on two or three fingers all of the reversals based on constitutional speedy trial since I've been at the ADO.

There were several facts that were in Mr. Mortiboy's favor: he had been a truck driver and as a condition of bond was not allowed to drive a truck; the preliminary hearing was continued pending receipt fo a lab report, but even after the lab report was filed with the court, nothing happened for more than seven months, without explanation; and the finally scheduled preliminary hearing had to be continued after defense subpoenas were returned unserved with a notation of "called off by Gray County Attorney". On the other hand, Mr. Mortiboy had been released on bond for most of the pretrial delay (and was released on appeal bond during appeal). In a particularly good passage, the COA observes the following:

While there is no evidence in this case to show that the State deliberately delayed the preliminary hearing to hamper Mortiboy or accomplish some other questionable purpose, a delay accomplished by inaction or indifference is equally unacceptable.

The COA also found police violated the Fourth Amendment due to a search of Mr. Mortiboy's pockets after stopping his truck. The deputy testified that he observed Mr. Mortiboy throwing things inside the truck and saw Mr. Mortiboy unsuccessfully attempt to light the wrong end of his cigarette. The COA had no problem with the deputy conducting a Terry stop, but held that the search of the pockets exceeded the scope of that limited stop: "It is apparent that [the Deputy's] primary purpose in searching Mortiboy's pocket was to preserve evidence."

[Update: the state did not file a petition for review and the mandate issued on April 6, 2006.]

1 comment:

The four factor test for deciding constitutional speedy trial violations in Barker v. Wingo, 407 U.S. 514, (1. length of the delay, 2. reason for the delay, 3. assertion of the right, and 4. prejudice to the defendant)was enhanced with Doggett v. United States, 505 U.S. 647 (1992) which held delays in excess of five years are "presumptively prejudicial" to the defense. See also Jackson v. Ray, 390 F.3d 1254 (10th Cir., 2004)(recognizing delays in excess of six years relieve the defendant from making a particularlized showing of prejudice). In federal courts, the decisions note heightened scrutiny is applied for trial delays exceeding one year. In Doggett, it is interesting to note the defendant even left the country for part of the time the trial was delayed.